Cotton v. Cotton

239 So. 2d 865, 1970 Fla. App. LEXIS 5875

• Court: District Court of Appeal of Florida
• Decided: October 9, 1970
• Docket: No. 70-651
• Status: Published

Opinion

ADAMS, ALTO (Ret.), Associate Judge.

On interlocutory appeal we review an order committing Barton L. Cotton to jail and striking his pleadings.

Barton L. Cotton brought a divorce suit against his wife. She answered and also filed a counterclaim charging adultery.

Upon a deposition hearing plaintiff was asked if within the last two years he had had sexual relations with any other woman except his wife. He refused to answer claiming constitutional privilege of immunity. Upon this refusal, the trial court ruled him in contempt, ordered his pleadings stricken and further ordered him to be confined in the Orange County Jail until such time as he should fully answer the questions propounded.

The circuit judge was eminently correct in striking appellant’s pleadings, based upon the authority of Stockham v. Stockham, Fla.1964, 168 So.2d 320.

We must hold the circuit judge in error, however, in that part of the judgment committing appellant to jail. This ruling is based upon the authority of Malloy v. Hogan, 1964, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.

To claim this privilege it was not incumbent upon appellant to seek a protective order. This right is so sacred that it may not be diminished by any court rule or statute.

For the reasons stated the interlocutory order is affirmed in part and reversed in part and the cause is remanded for further directions not inconsistent with this opinion.

Reversed, in part, affirmed, in part.

CROSS, C. J., and McCAIN, J., concur.